NCTA Keeps 3-Year Vow

2/08/2008 7:00 PM Eastern

By: Ted Hearn

Major cable operators will comply for three years with federal rules that require duplicative carriage of some local TV stations even if cable programmers succeed in overturning the rules in court, according to National Cable & Telecommunications Association president Kyle McSlarrow.

“Notwithstanding what happens to the FCC rule [in court], our commitment stands,” McSlarrow told Multichannel News last Tuesday — one day after a group of major cable networks, including C-SPAN, Discovery Communications and The Weather Channel, sued to overturn FCC regulations adopted last September that imposed new TV station carriage requirements on cable systems.

Cable operators, McSlarrow said, could have gone to court with the programmers but decided against it. NCTA’s major cable operators include Comcast, Time Warner Cable, Charter Communications, Cox Communications and Cablevision Systems.

“This was largely the product of the MSOs’ making a commitment [on dual carriage to Congress]. Programmers weren’t a party to that and certainly weren’t bound by it,” McSlarrow said.

At one time, NCTA had threatened a legal challenge based on duplicative carriage as a taking of private property without just compensation, violating the Fifth Amendment in the Constitution. But the trade group backed down after the FCC agreed to NCTA’s three-year sunset.

Under the rules, commercial TV stations that demand, rather than negotiate, access to cable systems are entitled to have their signals sent to cable homes in analog and digital formats. The tiny number of all-digital cable systems don’t need to send an analog version, presumably because their customers have digital reception equipment connected to all their televisions.

Public TV stations — which have only must-carry rights — normally would have been covered by the FCC’s rules, but public TV stations represented by the Association of Public Television Stations forfeited their analog cable-carriage rights in a private agreement with NCTA almost three years ago.

Cable systems don’t need to comply with the FCC’s dual carriage mandates until Feb. 18, 2009, the day after federal law requires TV stations to shut off their analog signals.

In 2005, NCTA’s cable operator members pledged to Congress that they would offer dual carriage instead of forcing consumers to lease set-top boxes to tune in digital must-carry signals sent to the home.

Last year, NCTA’s members made the same promise to the FCC, which codified it in its rules. But the trade group first had to overcome resistance from Republican FCC chairman Kevin Martin, who opposed a three-year sunset.

“Our plan reflected our commitment to Congress — which had nothing to do with the FCC — which was we would try to make the transition as seamless for our customers as possible,” McSlarrow said.